It can hardly be doubted that the
appropriate formulation of a right may facilitate its
implementation. But given that certain concepts escape any
scientific definition, it becomes necessary to relate them to a
given context for the sake of normative precision and effective
implementation (mise en oeuvre); thus, e.g., the term
"environment" may be taken to cover from the immediate
physical milieu surrounding the individual concerned to
the whole of the biosphere, and it may thus be necessary to add
qualifications to the term.201 In the implementation of any right one can hardly
make abstraction of the context in which it is invoked and
applies: relating it to the context becomes necessary for its
vindication in the cas d'espèce.202

This applies not only to the right to a
healthy environment, but also to any other "category"
of rights. But such "new" rights as the right to a
healthy environment and the right to development present
admittedly a greater challenge when one comes to implementation:
while many of the previously crystallized civil and political,
and economic, social, and cultural rights had at a much earlier
stage found expression also in domestic law and had been formally
recognized in national constitutions and other legislation, the
above-mentioned "new" rights, in their turn, were still
"maturing" in their process of transformation into law,
were "conceived directly in international forums" (such
as the United Nations system), and had "not had the benefit
of careful prior scrutiny at the national level."203 Many rights, whether
classified as civil and political, or else as economic, social,
and cultural rights, "can only be defined with specificity
when located in a given context."204

While the element of formal
justiciability is taken as an "indispensable
attribute" of a right in positivist thinking,205 international human
rights law has distinctly considered that "an international
system for the 'supervision' of States' compliance with
international human rights obligations is sufficient to satisfy
the requirement of 'enforceability'."206 In short, international
human rights law has "clearly adopted the notions of
'implementation' and 'supervision' as its touchstones, rather
than those of justiciability or enforceability."207 International human
rights law counts largely on means of implementation other than
the purely judicial one;208 besides recourse to such judicial organs as the
European and the Inter-American Courts of Human Rights, there
occurs most often resort to various other means - non-judicial
means - of implementation of guaranteed human rights (e.g.,
friendly settlement, conciliation, fact-finding).209

Formal justiciability or enforceability is
by no means a definitive criterion to ascertain the existence of
a right under international human rights law. The fact that many
recognized human rights have not yet achieved a level of
elaboration so as to render them justiciable does not mean that
those rights simply do not exist: enforceability is not to be
confounded with the existence itself of a right.210 Attention is to be
focused on the nature of obligations; it is certain that,
for example, obligations under the UN Covenant on Economic,
Social, and Cultural Rights were elaborated in such a way (e.g.,
the basic provisions of Articles 2 and 11) that they "cannot
easily be made justiciable (manageable by third-party judicial
settlement). Nevertheless, the obligations exist and can in no
way be neglected."211

One is to reckon, in sum, as far as the
issue of justiciability is concerned, that there are rights that
simply cannot be properly vindicated before a tribunal by their
active subjects ("titulaires"). In the case
specifically of the right to a healthy environment, however, if,
as pertinently pointed out by Kiss, this latter is interpreted
not as the virtually impossible - right to an ideal environment
but rather as the right to the conservation - i.e., protection
and improvement - of the environment, it can then be implemented
like any other individual right. It is then taken as a
"procedural" right, the right to a due process before a
competent organ, and thus assimilated to any other right
guaranteed to individuals and groups of individuals. This right
entails, as corollaries, the right of the individual concerned to
be informed of projects and decisions that could threaten the
environment (the protection of which counts on preventive
measures) and the right of the individual concerned to
participate in the taking of decisions that may affect the
environment (active sharing of responsibilities in the management
of the interests of the whole collectivity).212 To such rights to
information and to participation one can add the right to
available and effective domestic remedies. And it should not
in this connection be overlooked that some economic and social
rights were made enforceable in domestic law once their component
parts were "formulated in a sufficiently precise and
detailed manner."213

Focusing on the subjects of the
right to a healthy environment, we see first that it has an
individual dimension, as it can be implemented, as just
indicated, like other human rights. But the beneficiaries of the
right to a healthy environment are not only individuals, but also
groups, associations, human collectivities, and, indeed, the
whole of mankind. Hence its collective dimension as well. The
right to a healthy environment, like the right to development,
discloses both individual and collective dimensions at a time. If
the subject is an individual or a private group, the legal
relationship is exhausted in the relation between the individual
(or group of individuals) and the state; but if we have in mind
mankind as a whole, the legal relationship is not exhausted in
that relation. This is probably why the distinction between
individual and collective dimensions is often resorted to.

If we focus on implementation, it
is conceded that all rights, whether "individual" or
"collective," are exercised in a societal context, all
having a "social" dimension in that sense, since their
vindication requires the intervention - in varying degrees - of
public authority for them to be exercised. There is, however, yet
another approach that can shed some light on the problem at
issue: to focus on the object of protection. Taking as
such an object a common good, a bien commun such as the
human environment, not only are we thereby provided with
objective criteria to approach the subject, but also we can
better grasp the proper meaning of "collective" rights.

Such rights pertain at a time to each
member as well as to all members of a given human collectivity,
the object of protection being the same, a common good (bien
commun) such as the human environment, so that the observance
of such rights benefits at a time each member and all members of
the human collectivity, and the violation of such rights affects
or harms at a time each member and all members of the human
collectivity at issue. This reflects the essence of
"collective" rights, such as the right to a healthy
environment insofar as the object of protection is
concerned.

The multifaceted nature of the right to a
healthy environment becomes thus clearer: the right to a healthy
environment has both individual and collective dimensions- being
at a time an "individual" and a "collective"
right -insofar as its subjects or beneficiaries are
concerned. Its "social" dimension becomes manifest
insofar as its implementation is concerned (given the
complexity of the legal relations involved). And it clearly
appears in its "collective" dimension insofar as the object
of protection is concerned (a bien commun, the human
environment).

The matter has not been sufficiently
studied to date, and considerable in-depth reflection and
research are required to clarify the issues surrounding the
implementation of the right to a healthy environment and the very
conceptual universe in which it rests. Insofar as the subjects of
the relationships involved are concerned, one has moved from the
individuals and groups to the whole of mankind, and in this wide
range of titulaires one has also spoken of generational
rights (rights of future generations - see supra). Insofar
as the methods of protection are concerned, it still has to be
carefully explored to what extent the mechanisms of protection
evolved under international human rights law (essentially, the
petitioning, the reporting, and the fact-finding systems)214 can be utilized also in
the realm of environmental protection.

It seems that the experience accumulated
in this respect in the last decades in human rights protection
can, if properly assessed, be of assistance to the development of
methods of environmental protection. Some inspiration can indeed
be derived from the experience of the application of mechanisms
of international implementation of human rights, for the
improvement of international implementation of instruments on
environmental protection. It is, in this connection, reassuring
to note that the conclusions of the recent Forum on International
Law of the Environment, held in Siena, Italy, in April 1990,
recognize inter alia that "certain procedures used
for the protection of human rights could serve as models in the
field of the protection of the environment."215 Likewise, expert writing
on international environmental law has suggested that UN
international environmental organs could be given "powers
similar to those" of the UN Committee on Economic, Social,
and Cultural Rights "to study and comment on reports
submitted by States since the right to a good environment is
similar to and partakes of all the difficulties and drawbacks of
social and economic rights."216 Such acknowledgements are quite understanding and
beneficial to environmental protection, given the fact that human
rights protection antedates it in time, and experience with the
implementation of the latter can be of use and value to the
implementation of the former.

2. The issue of protection erga
omnes: "Drittwirkung"

In the fields of both human rights
protection and environmental protection there occur variations in
the obligations: some norms are susceptible of direct
applicability, others are rather programmatic in nature.
Attention ought thus to be turned to the nature of the
obligations. An important issue, in this connection, is that of
the erga omnes protection of certain guaranteed rights,
which raises the issue of third-party applicability of
conventional provisions. This issue, called "Drittwirkung"
in German legal literature, can be examined in the domains of
both human rights protection and environmental protection.

In the former, Drittwirkung is still
evolving in, e.g., the case-law under the European Convention on
Human Rights217
(infra). Bearing in mind the considerable variety of
rights guaranteed under human rights treaties, there are
provisions in these latter that seem to indicate that at least
some of the rights are susceptible of third-party applicability (Drittwirkung).
Thus, Article 2(1)(d) of the UN Convention on the Elimination
of All Forms of Racial Discrimination prohibits racial
discrimination "by any persons, group or organization "
By Article 2(1) of the UN Covenant on Civil and Political Rights
States Parties undertake not only "to respect" but also
"to ensure" to all individuals subject to their
jurisdictions the rights guaranteed under the Covenant - what may
be interpreted as at least the States Parties' duty of due
diligence to prevent deprivation or violation of the rights of
one individual by others. And it has been argued that Article 17
of the Covenant (right to privacy) would cover protection of the
individual against interference by public authorities as well as
private organizations or individuals.218 In addition, Article 29 of the Universal
Declaration of Human Rights refers to "everyone's duties to
the community."

The European Convention on Human Rights,
in its turn, states in Article 17 that nothing in the Convention
may be interpreted as implying "for any State, group or
person," any right to engage in any activity or perform any
act aimed at the destruction of the guaranteed rights. Articles
8-11 indicate that account is to be taken of the protection of
other people's rights; and from Article 2, whereby
"everyone's right to life is protected by law," it may
be inferred the state's duty of due diligence of prevention and
of making its violation a punishable offence.219 It can in fact be
forcefully added that the supreme values underlying fundamental
human rights are such that they deserve and require protection erga
omnes, against any encroachment, by public or private bodies
or by any individual.220

Even though the issue of Drittwirkung was
not considered when the European Convention was drafted, the
subject-matter of the Convention lends itself to Drittwirkung in
the sense that some of the recognized rights deserve protection
against public authorities as well as private individuals, and
states have to secure everyone - in the relations between
individuals- against violations of guaranteed rights by other
individuals.221
Thus, e g, with regard to the right to privacy (Article 8 of the
Convention, on respect for private life), there is need to
protect this right also in the relations between individuals
(persons, groups, institutions, besides states). Situations have
in fact occurred in practice where the state may be involved in
the relations between individuals (e.g., custody of a
child, clandestine recording of a conversation by a private
individual with the help of the police)222 Certain human rights have
validity erga omnes, in that they are recognized in
relation to the state but also and necessarily "in relation
to other persons, groups or institutions which might prevent the
exercise thereof "223

Thus, a human rights violation by
individuals or private groups can be sanctioned indirectly, when
the state fails, in "its duty to provide due
protection," to take the necessary steps to prevent or
punish the offence.224 Article 8 of the European Convention pertinently
illustrates the "absolute effect" of that right to
privacy, the need for its protection erga omnes against
frequent interferences or violations not only by public
authorities but also by private persons or the mass media.225

In the same line, it has been forcefully
argued that the right to a healthy environment ought to be
"opposable aux tiers, avoir un effet direct à leur
égard," ought to be "opposable directement aux
particuliers de façon à assurer la protection des intérêts
des individus et des groupes en matière d'environnement"226Drittwirkung amounts
to the situation whereby everyone is beneficiary of that right
and everyone has duties vis-à-vis the other citizens and vis-à-vis
the whole community; "tout le monde est bénéficiaire
de ce droit, mais en même temps tout le monde assume aussi des
obligations de son fait: Etat, collectivités, individus."227

1. No restrictions ensuing from
the coexistence of international instruments on human rights
protection

In the field of the international
protection of human rights, restrictions are not to be inferred
from the possible effects of multiple coexisting instruments of
human rights protection upon each other: on the contrary, in the
present context, international law has been made use of in order
to improve and strengthen the degree of protection of recognized
rights. In fact, the interpretation and application of certain
provisions of one human rights instrument have at times been
resorted to as orientation for the interpretation of
corresponding provisions of other - usually newer - human rights
instruments.228

Normative advances in one human rights
treaty may indeed have a direct impact upon the application of
other human rights treaties, to the effect of enlarging or
strengthening the States Parties' obligations of protection and
restricting the possible invocation or application of
restrictions to the exercise of recognized rights. Multiple human
rights instruments appear complementary to each other; and their
complementarily reflects the specificity of the international
protection of human rights, a domain of international law
characterized as being essentially a droit de protection. Where
states have undertaken obligations under multiple coexisting
instruments of human rights protection, it may be taken to have
been the intention to accord individuals a more extended and
effective protection. In sum, there is here a clear trend towards
the expansion and enhancement of the degree and extent of
protection of rights recognized under coexisting human rights
instruments.229

2. No restrictions ensuing from
the coexistence of international instruments on environmental
protection

Likewise, in the field of international
environmental law, restrictions are not to be implied from the
possible effects upon each other of multiple coexisting
instruments on environmental protection. To this effect, in its
well-known 1987 report, the World Commission on Environment and
Development, in propounding the elaboration of a Universal
Declaration and a Convention on Environmental Protection and
Sustainable Development, stressed the need "to consolidate
and extend relevant legal principles" on the matter in order
"to guide State behaviour in the transition to sustainable
development," and warned that multiple coexisting as well as
new international conventions and agreements in the area were to strengthen
and extend environmental protection.230 As in human rights
protection (supra), there is no room for (implied)
restrictions in the present domain of environmental protection
either.

Having thus considered the point at issue
from the perspective, on the one hand, of the effects of human
rights instruments upon each other, and, on the other hand, of
the effects of environmental protection instruments upon each
other, we have found no room for the incidence of restrictions,
as those instruments, in one and the other domain, were meant to
reinforce each other and strengthen the degree of protection due.
It now remains to examine the point at issue from the perspective
of the effects of norms or instruments of human rights protection
and of environmental protection inter se, or more
precisely, of the effects of the recognition of the right to a
healthy environment upon the corpus of human rights
already recognized.

3. No restrictions ensuing from
the expansion of systems of protection (as evidenced by the
recognition of the right to a healthy environment) in their
effects upon each other

A fairly recent trend of thought has
visualized in the emergence of environmental policies of states
the incidence of restrictions upon the exercise of certain
recognized human rights. It has further justified these latter to
the effect of protecting the environment. I have suggested that,
while some of the more classical civil and political rights are
not apparently affected, certain economic and social rights are
susceptible of suffering restrictions. As examples, reference has
been made to the rights of free circulation, of choice of
residence, and to property, in face of protected areas or zones;
the rights to work, in face of anti-pollution measures; the right
to equality, in face of disparities in administrative measures as
to the environment; the freedom of association, in face of
measures against noise pollution; the right to family, in face of
birth-control measures; the right to development and to leisure,
in face of measures for conservation of nature.231

This approach, it is submitted, is
inadequate and short-sighted, even though it cannot fail to admit
that the right to a healthy environ ment comes ultimately to
guarantee and reinforce such basic rights as the right to life
and the right to health. 232